Kenya Cases Given Go-Ahead at ICC

Thursday, 7 June, 2012

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Nzau Musau

Simon Jennings

Africa Editor

The cases against four senior Kenyan figures before the International Criminal Court, ICC, cleared a major hurdle on May 24 when appeals judges rejected challenges which the defendants had filed over whether the court has jurisdiction to prosecute. 

The cases now look set to go to trial in The Hague within a year, and the decision has been welcomed as a big step forward by rights groups and victims of the 2007-08 violence that followed a disputed presidential election in Kenya.

The parties will convene in The Hague on June 11-12 to discuss the next steps in the process, including a possible start date.

The appeals chamber did not rule on an important issue raised at previous hearings – how to define an “organisational policy” for the commission of grave crimes. Suspicion that such a policy existed is part of what gives the ICC jurisdiction to try a case. Instead, they deferred that decision until relevant evidence has been heard during the trial.

Kenya descended into violent chaos following the December 2007 election, leading to the deaths of more than 1,300 people and approximately 350,000 others being forcibly displaced.

Following court hearings during September and October 2011, the ICC confirmed charges of crimes against humanity against Kenya's deputy prime minister Uhuru Kenyatta, former civil service chief Francis Muthaura, former higher education minister, William Ruto, and radio journalist Joshua arap Sang.

On January 30, defence lawyers for all four defendants challenged the ICC’s jurisdiction to try the cases, on the grounds that the crimes being prosecuted did not meet the necessary legal threshold of crimes against humanity and were therefore not serious enough to fall within the court’s jurisdiction.

The five-judge appeals panel ruled that the defence’s submissions did not amount to a jurisdictional challenge, but instead hinged on the prosecutor’s evidence in the case, and should therefore be decided on the facts presented at trial.

According to the ICC’s founding treaty, the Rome Statute, in order for an act to qualify as a crime against humanity and merit investigation by the international court, a key requirement is that it has been committed against a civilian population “pursuant to, or in furtherance of a state or organisational policy”.

The defence teams in the Kenya case all argue that the prosecutor’s evidence has not demonstrated an “organisational policy” on the part of the defendants, and that the case should therefore not be tried by the Hague court.

ICC judges were themselves divided on this point when issuing their decision to open an investigation into Kenya’s post-election violence in March 2010, and again when confirming the charges in January this year.

In 2010, two judges ruled in favour of advancing the investigation in Kenya while the third, Judge Hans-Peter Kaul, disagreed. Kaul issued a dissenting opinion arguing that the evidence did not establish grounds for believing there was an organisational policy behind the crimes; and that the ICC therefore did not have jurisdiction over them.

In Kenya, supporters of the ICC process hailed last week’s decision as an endorsement of the prosecutor’s powers to investigate crimes on his own initiative.

The Kenyan investigation will be the first case that ICC Prosecutor Luis Moreno-Ocampo has initiated and successfully brought before the court, under the legal doctrine known as “proprio motu”.

“By exercising his proprio motu powers and succeeding on it to this level, the prosecutor and the court have shown the zeal to punish international crimes,” said James Gondi, the head of the International Centre for Transitional Justice in Nairobi.

Ocampo began investigations in Kenya after the government repeatedly failed to establish a local mechanism to prosecute alleged perpetrators of the post-election violence.

Priscilla Nyokabi, director of the legal aid organisation Kituo Cha Sheria in Nairobi, believes last week’s decision will spur the prosecutor’s imminent successor, Fatou Bensouda, to initiate further investigations elsewhere.

“[The decision] will undoubtedly embolden the incoming prosecutor to be more proactive,” Nyokabi said.

Victims of the violence who are yet to see any senior figure brought to justice for the violence are also happy that the case is moving towards trial proceedings, although for many it will take more than a justice process to help them rebuild their lives.

“I want those who did this to me punished,” said Eric Kioko who was a disc-jockey at the time of the post-election violence when he lost his hand in an attack on Mathare slums in the heart of Nairobi. “But above all, I want to be restored as near as possible to the position I was in before.”

A Decision Deferred

The May 24 decision has given no greater clarity to the question of “organisational policy”, or to how the court should handle the legal issues raised by both Judge Kaul and by the defence teams.

In their January submission, defence lawyers did not explicitly ask the appeals judges to give their interpretation as to whether the prosecutor’s evidence made the case that the defendants’ alleged actions were underpinned by an “organisational policy”.

At the 2010 hearing, the two pre-trial judges reached an understanding – which they repeated when confirming the charges in January 2012 – as to the required legal criteria for such an organisational policy, including the existence of a command structure, a hierarchy, and criminal intent. However, the appeals chamber did not rule on these criteria.

William Schabas, a professor of international law at Middlesex University in the UK, believes the appeals judges were right not to reach a decision at this stage.

“It’s always wise to decide these things in light of a good factual framework,” Schabas said. “I’m not surprised [judges took this route] and I think it is probably the right decision.”

Other legal experts were surprised by the decision, and said it would have been useful for the appeals chamber to outline the legal standards for determining that an organisational policy existed.

“I am surprised that the appeals chamber did not confirm, one way or the other, the analysis of the organisational policy provided most recently by the pre-trial chamber in their January 2012 confirmation of charges decisions,” Jens Ohlin of the Cornell Law School in New York said.

If the court had explicitly set out its views on what constitutes an organisational policy, then the parties in the case would be able to “go into trial knowing how to make their arguments”, Ohlin said.

Some of the defendants have given notice that they intend to raise the matter early on in the trial.

"Fairness dictates that the accused know with clarity the precise contours of the charges against him," Sang argued in his filing.

The lack of clear legal parameters could mean that the parties are talking at cross-purposes when the case comes to trial.

“You’re going to have litigants going into the trial making arguments when the law is still a little bit unsettled,” Ohlin said.

Unless all four defendants are acquitted, appeals judges are likely to be asked to rule on the same point after the trial is over. If that happens, they could find that the factual information presented during the trial does not contain enough proof of the existence – or otherwise – of an organisational policy to inform their own decision on the matter.

Ohlin noted that the danger of this happening is precisely the reason why the court has in the past been willing to make key legal decisions in advance of a trial.

Definition could shape future ICC policies

A definitive statement of the legal standard for “organisational policy” is not only crucial to the Kenyan trial, it also has implications for the ICC’s future activities. It could restrict the prosecutor’s authority so that he can investigat only the most serious cases of genocide, war crimes and crimes against humanity; or it could offer scope for broader investigations if the interpretation is more generous.

Either way, the final definition will be “hugely influential for many years to come”, according to Schabas.

He noted that international courts have often started with a broad interpretation of crimes against humanity, allowing them to target lower-level suspects, before they establish themselves and are able to prosecute high-profile figures.

“I think the problem with international justice is you need to have a net with big holes in it, so the smaller fish you are not interested in can swim through,” Schabas said. “I’ve never been interested in having a net that catches everything. Then you end up with a net full of garbage.”

Schabas believes the ICC will have its hands full dealing with major alleged criminals, so pursuing lesser crimes and their perpetrators will only “clutter” the judicial process.

A final ruling on the matter will only come in several years’ time when appeals judges define the standard for testing the existence of an “organisation policy” behind crimes against humanity, in this case in Kenya. A trial judgement is probably close to three years away, and appeals judges would still have to issue a ruling after that.

“There is going to be great uncertainty in the world community about what exactly the extent of the court’s authority is in this area, so it is going to be a big mess,” Ohlin said. “You’re talking about years more of uncertainty on this.”

Nzau Musau is an IWPR reporter in Nairobi. Simon Jennings is IWPR’s Africa Editor.